When the answer is no

There’s an old old old lawyer joke about the young associate sent by the senior partner to try a case in a distant city. When the jury verdict comes in, the associates sends a telegram1 to the senior partner: “Justice has triumphed,” it read.

And the immediate reply sent by the senior partner: “Appeal at once!”

And that, dear reader, is The Legal Genealogist‘s advice in almost every situation where we as genealogists ask for information from the federal government, and the answer comes back that we can’t have it.

Appeal at once.

Access to most information from the federal government — things like those wonderful SS-5 forms, in which our parents and grandparents applied for a social security number, or like all those wonderful forms sent in because of immigration or naturalization issues — is governed by a federal law called the Freedom of Information Act (FOIA, for short).

It’s set out in the federal statute books at Title 5 of the United States Code starting at section 552 (cited as 5 U.S.C. §5522 and it promises, repeatedly, that “Each agency shall make available to the public information…”

Now you already know what the next word is, right?

Except.

There are nine specific exceptions set out in the law. A federal agency doesn’t have to give us the information we ask for if it concludes that it falls into any of these categories of “matters that are”:

• (1) “specifically authorized … to be kept secret in the interest of national defense or foreign policy”;
• (2) “related solely to the internal personnel rules and practices of an agency”;
• (3) “specifically exempted from disclosure by statute”;
• (4) “trade secrets and commercial or financial information obtained from a person and privileged or confidential”;
• (5) “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”;
• (6) “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”;
• (7) specific types of “records or information compiled for law enforcement purposes”;
• (8) “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions”; or
• (9) “geological and geophysical information and data, including maps, concerning wells.”3

Whenever we as genealogists ask for information from a federal agency, and the agency says no, it’s supposed to tell us why it won’t give it to us, and it usually does so by citing one of these nine exceptions. The ones we’re most likely to come across as genealogists are 5 U.S.C. §552(b)(6) — the general personal privacy provision, 5 U.S.C. §552(b)(7) — if we’re asking for records relating to law enforcement, like FBI files, and, now, with the changes in access to the Social Security Death Master File, 5 U.S.C. §552(b)(3) — records that are specifically exempted from disclosure by statute.

As to that last one, the fact is there’s not a whole lot we can do about it: once Congress specifically says an agency doesn’t have to hand over data — the way that the Social Security Administration now can’t hand over data about people who have died within the last three years4 — there’s no realistic chance that the agency will “change its mind” about not providing the information.

But for the other two? Taking no for an answer shouldn’t be an immediate choice. Because the person who reviewed that request and who said no may have been wrong, and somebody else higher up the ladder may disagree. And all it takes to get somebody else higher up the ladder to take a second look at the request is an appeal — and in FOIA terms that’s nothing more than a written request saying why you don’t agree with the decision and you still want the information.

The letter you get from the agency must tell you what it decided, why it decided it and that you have the right to appeal the decision. That’s set out specifically in the law: “Each agency … shall … determine … whether to comply with such request and shall … notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.”5

The letter will tell you how long you have to file your appeal — usually 45 to 60 days, who you have to file it with (a name and address), and any formalities that have to be included. And, in general, those formalities are simple: the request has to be in writing, you have to sign it, and you have to put whatever reference number they give you in the request.

There aren’t any special forms, no filing fees, no lawyers involved — just a letter that you send to the agency saying you disagree and why.

Now it’s not enough just to say the agency is wrong. You have to give reasons, and they have to be more than “but I want the information!” You want to explain why you don’t think the specific information you want falls within the exception.

For example, if an agency says you can’t have personal information about someone because “disclosure .. would constitute a clearly unwarranted invasion of personal privacy”6 and you can prove the person died 75 years ago, send a copy of the death record along with a paragraph explaining that the person whose information is requested is dead and so no longer has any right to personal privacy. If you don’t have a death certificate, enclose a printout from the SSDI, or a photo of the tombstone marker, or a copy of the obituary.

Of course, we all need to be reasonable. If the agency has redacted (blacked out) information on one page out of 10, and we already know what the blacked-out section says, we’re just making work for ourselves and the agency staffs by filing an appeal of that redaction. We should limit appeals to the ones we need to file, for information we can’t reasonably get any other way.

7 Responses to When the answer is no

I’ve only received a no one time in filing a FOIA request to the federal government, and it ended up being none of those reasons. I was looking to find the location of the bodies of some ancestors who were dug up and reburied due to a federal highway being put over the cemetery back in the 1970s.

The nice federal officer who answered my email said no because he did not have the specific records anymore in the highway authority’s possession, and he told me exactly who to go to at the state agency that did have the records. A few months later and I had the record I was looking for from the federal government, via the state highway authority.

After hearing so much about how difficult it is to get FOIA documents from federal agencies, I was very impressed with the kindness and courtesy of the federal officer who helped me.

Should I accept “We don’t have it” answer I received when I asked under the FOIA for the backup information supplied by my grandmother when she applied for Social Security in 1865 when she was 85 years old. I know that it was unlikely that she was able to prove her exact age as her birth took place before records were kept where she was born. She probably had her marriage certificate (1903)and was of age at the time of marriage(23). Would that have been enough for SSA?

I have been successful obtaining records from three different federal agencies. In one response, the representative apologized for the considerable delay in sending the records. In another, the rep said they didn’t have the records but referred me to another agency and gave me the exact language to use in the FOIA request. I received those records also. My recommendation in writing a FOIA request is that you keep it concise, directly to the matter at hand, nothing extraneous or negative, and use as much of FOIA language as is applicable (even better when they give you the words to use).